Judicial consent to apply for a foreign passport or identity card for a minor child in The Netherlands
When parents separate, they face not only emotional or financial issues, but sometimes also legal problems. If the child has a different nationality or a second nationality besides the Dutch nationality, this can pose specific challenges. For example, when one parent wants to apply for a foreign passport or ID card for a child, but cannot obtain the other parent's consent. In such cases, the Dutch courts offer a solution: judicial permission for the parent to apply for the document, substituting the other parent’s consent.
This article explains what substitute consent entails, when you need it, how the procedure works, and what you should be aware of as a parent.
What is substitute consent and when do you need substitute consent?
When a child lives in the Netherlands, the Dutch courts have jurisdiction over custody issues, regardless of the child's nationality. If parents cannot reach an agreement, the court can grant substitute consent for matters such as medical treatment, school enrollment, or for the application of an identity document. This consent then replaces the consent of the other parent.
Under Dutch law, applying for an identity document – such as a passport or ID card – for a child under 18 requires the permission of both parents with parental authority. If the child has a different nationality or two nationalities, this principle usually also applies. The relevant consulate or embassy will therefore require permission from both parents for the application for a new passport or ID card.
Substitute consent for a foreign passport or ID card
A parent can request substitute consent for a foreign passport or ID card in situations such as the following:
- The other parent refuses to grant consent for the application or renewal of the foreign passport or ID card;
- The other parent cannot be located or reached to grant consent;
- There is a conflict regarding the child's nationality.
Best interests of the child
When requesting substitute consent, the court always assesses what is in the child's best interests. The parent refusing consent must be able to demonstrate that applying for a foreign passport/ID card is actually against the child's best interests.
If the child has only one nationality, it's often crystal clear that the child needs an identity document. Simply saying "I don't want it" or "I don't trust the other parent" isn't enough. But sometimes, it may be argued that the requesting parent will abuse a second identity document to flee abroad. In such cases, the judge might be convinced that granting substitute consent is not a good idea. However, this is an exception. In most cases, substitute consent is granted.
Procedure for obtaining substitute consent
The parent seeking substitute consent must file a petition with the court. A lawyer is always required for this. The other parent is given the opportunity to respond (via a statement of defense). A hearing will then follow, and the judge will make a decision. In urgent cases, the judge can also issue an expedited ruling in summary proceedings. For example, an upcoming vacation that would otherwise be cancelled because the child doesn't have a passport. The child may also need a valid identity document to enroll in a course of study.
For children with Dutch nationality, the Dutch Passport Act must be invoked. However, the Dutch Passport Act does not apply to obtaining substitute consent for the application of a foreign identity document. In such a case, a petition must be submitted to the court, stating that there is a dispute regarding the joint exercise of parental authority. Failure to grant consent to apply for a foreign passport/ ID card is considered a conflict of parental authority.
Points to consider when requesting substitute consent for foreign passports or ID's
To substantiate the request, it is important to clarify the form (nature and content) of joint parental authority granted to the parents abroad. If parents move to the Netherlands with their children, that authority generally remains in effect, unless it is later amended under Dutch law. This principle follows from the Hague Child Protection Convention (HCCH) from 1996.
The applicable law, on which parental authority is based, must therefore taken into account when assessing the request for substitute consent for a foreign passport or ID card. Examples of parental authority that occur abroad include: "Limited joint custody", "joint custody with shared residence/ shared physical responsibility." These partial forms of custody are not known in Dutch law and involve a different division of the parents' legal responsibilities. It is important for the Dutch court to understand the nature of the parents’ responsibilities, so it can consider the type of custody in their ruling.
Another important point is to enquire beforehand with the relevant consulate or embassy whether the Dutch court's ruling requires a specific form or must meet certain formal requirements. If these requirements do not conflict with Dutch law, the court will usually take them into account to ensure the application process proceeds as smoothly as possible in the child's best interest.
Finally
Applying for substitute consent for a foreign passport or ID card is not a trivial step. It often requires a careful balancing of interests, sound legal justification, and respect for the other parent's position. Nevertheless, it is an important route for parents who want to offer their child the opportunity to maintain their identity, nationality, or family ties abroad. And sometimes it's simply necessary for the child to obtain a valid ID as quickly as possible.
How can Bowmer Nuiten Noteboom help you?
Would you like more information on this topic? We are happy to advise you. We have an experienced family law team who can take action on your behalf. We also have extensive experience in situations where the parties involved have different nationalities or live in different countries.
If you have any questions about this article, please feel free to contact Selma Akitürkmen.
